APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Hardie Lady Smith	[2010] HCJAC 119 Appeal No: XC687/09 OPINION OF THE COURT delivered by LADY SMITH in NOTE OF APPEAL AGAINST CONVICTION by DEBORAH McILVANNEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: M. Anderson; Paterson Bell

Respondent: A. Carmichael, Advocate depute; Crown Agent

26 November 2010

INTRODUCTION
On 3 July 2009, the appellant, was convicted, after trial, at Kilmarnock Sheriff Court of charge 1(e) on the indictment which was in the following terms:

"on 27 March 2006, at the premises occupied by C I Broker Services, 417 Great Western Road, Glasgow and Bradford and Bingley, Croft Road, Bingley you ... did pretend to said Bradford and Bingley that you had an income of £42,000 cumulo which included an income of £12,000 from "Up the Bracket", 35 St Andrews Street, Kilmarnock and rental income of £5400 from a lease agreement with Noelle Darcy and Kenneth Miller.... the truth being as you well knew that you ... did not have an income of £12,000 from "Up the Bracket" ... and rental income of £5400 from a lease agreement with said Noelle Darcy and Kenneth Miller and you did thus induce said Bradford and Bingley to advance a mortgage of £150,750 to fund the purchase of the property at Flat 6/2, Lancefield Quay, 177 Finnieston Street, Glasgow, and you ... did thus obtain £150,750 of money by fraud."

The Sheriff imposed a non custodial sentence of 100 hours community service.

The indictment was served on the appellant on 10 February 2008.

BACKGROUND
The following matters were not in dispute: that the flat referred to in the charge was purchased in the name of the appellant, that it was purchased with the assistance of a loan from the Bradford and Bingley in the sum referred to, that the loan application contained the income figures specified in the charge, and that her income was in fact significantly less than as was represented by those figures.

The loan was arranged through a self employed mortgage broker, to whom we will refer as EH. As such broker, he would have been entitled to a fee and commission in respect of the arrangement of the loan. His evidence was central to the case against the appellant. Put shortly, he said that the income figures in the application all came from the appellant. He was incriminated by the appellant. The defence case, which was put to him in cross examination, was that all the income figures in the application had been entered by him unscrupulously and without the knowledge of the appellant; she was not the source of those figures. It was he who had exaggerated her income. He did not accept that that was so.

EH'S EVIDENCE
EH gave evidence to the effect that all the erroneous figures had come from the appellant herself, that he had worked in financial services for 30 years and that he had specialised in mortgage broking for 9 years. He indicated that it had never before been claimed that he had acted improperly in any way and that he had an unblemished record with the Financial Services Authority. As to checks on the appellant's representations about her income, that was not, he said a matter for him because hers was a "self certification" mortgage and that meant that it was for the lender to carry out any checks they considered necessary.

In short, the picture presented by him in evidence was of the appellant misleading him (and, accordingly, the lender) as to her income, of him being entirely innocent in the matter and, furthermore, of him having a long track record of working in the industry in an honest and upright manner. We were advised that the procurator fiscal emphasised the witness' good character when addressing the jury.

DISCLOSURE
No disclosure regarding EH's personal history was made by the Crown prior to trial. There was, however, information in the hands of the Crown when the appellant was indicted which the advocate-depute very fairly accepted ought to have been disclosed to the defence at that time. It was as follows:

On 3 August 2006, following a search of his business premises, EH was interviewed by the police under caution in relation to an allegation of fraud. He was not charged. He was informed that the matter would be reported. This was referred to in the course of the appeal as "Case B".

Over a year later, on 12 October 2007, the police reported Case B to the procurator fiscal in a report which named EH as one of nine accused. EH was named in four of the charges in the report.

That was the position as at 10 February 2008, when the indictment in the present case was served upon the appellant. The advocate-depute accepted that whilst EH had not been charged as at that date, the circumstances were analogous to those in which a Crown witness has been charged with an offence and so the principles set out in Allison v HM Advocate [2010] UKSC 6; 2010 SCCR 277; 2010 SLT 266, applied. The information regarding Case B should, he accepted, have been disclosed at that time. We can understand why that concession was made but we note that it was limited and was only a concession that the material should have been disclosed when the indictment was served. The advocate-depute did not concede that the defence would have been entitled to question EH about Case B at trial, for reasons which we explain below.

EH was not subsequently charged with any offence at any time. On the contrary, on 20 February 2008, ten days after service of the indictment upon the appellant, Case B was marked "no proceedings" by the procurator-fiscal. We were advised by the advocate-depute that once a proposed prosecution against a person has been marked "no proceedings", the details relating to it are deleted from the Crown's records. We were also advised that the person who is the subject of a report which is marked "no proceedings" will not necessarily be advised of that decision.

The trial commenced sixteen months later, on 8 June 2009.

RELEVANT LAW
The task for this court is to determine whether the failure to disclose rendered the trial of the appellant unfair; if it did then there has been a miscarriage of justice and the appeal should be allowed.

This being a case where the unfairness alleged arises from a failure to disclose, we require to have regard to the test set out in McInnes v HMA [2010] UKSC 7; 2010 SCCR 286. The test is in two parts. The first issue is whether the material withheld was material which ought to have been disclosed. If it was material which might have materially weakened the Crown case or materially strengthened the case for the defence, then that question will be answered in the affirmative (Allison v HMA). The second issue is whether, taking account of the whole circumstances of the trial, there is a real possibility that the jury would have arrived at a different verdict (McInnes v HMA per Lord Hope of Craighead at paragraph 20), an exercise which involves assessing the possible impact of the material in the context of the evidence as a whole. That part of the test thus involves considering what was the effect of the non-disclosure.

However, matters have to be considered from EH's perspective as well as from the perspective of the appellant. It is now established that the disclosure of a witness' previous convictions engages that witness's rights under article 8 of the convention (HMA v Murtagh [2009] UKPC 36; 2009 SCCR 790). We consider that it must follow that disclosure of the fact of a police interview and report to the procurator-fiscal also engages those rights. Accordingly, disclosure will be incompatible with the witness's article 8 rights unless the interference can be justified under article 8(2). A balance has to be struck between an accused's right to disclosure of material which could materially weaken the Crown case or materially strengthen his case (Murtagh v HMA, para 11; Allison v HMA, para 27) and the witness's right to respect for his private life. Disclosure of the information in question is required only in accordance with the law and if necessary in a democratic society for, amongst other things, the protection of the rights and freedoms of others. We consider, further, that that need for a balance to be struck subsists beyond the point at which disclosure may require to be made, right up to and including the time of any subsequent trial.

In the circumstances of the present case, following the reasoning in Allison, the balance is struck in favour of disclosure because Case B concerned two formal steps (interview under caution and a police report to the procurator-fiscal) having been taken in respect of an allegation against EH which was directly analogous to the charge against the appellant and which was still pending. In short, at the time the indictment was served, the information was potentially material.

There is, however, a further issue which arises, given the particular sequence of events. We address it by posing a hypothetical question. If the dates had been reversed so that the decision to mark Case B against EH "no proceedings" had been taken on 10 February 2008 and the indictment served after that, on 20 February 2008, would the Crown have been obliged to disclose the information about it? We do not consider that the Crown would have been obliged to disclose the material in that event. The considerations that weighed with their Lordships in Allison so as to lead to the conclusion that the history of a witness may properly have a bearing on a jury's assessment of his or her credibility must, we consider, be read as confined to those circumstances where, at the very least, there are charges outstanding against the witness at the time he gives evidence. That would seem to follow from Lord Rodger's reference at the beginning of paragraph 9, to "an individual charged with crime" and from Lord Hope's reference to "previous convictions and outstanding charges" in paragraph 29. To do otherwise would be either to ignore the witness's article 8 rights or to fail to strike a fair balance between them and the article 6 rights of the accused. We cannot see that their Lordships had in mind that there was also an obligation to disclose in circumstances where there were charges or an investigation in the past but those charges had been withdrawn or the investigation discontinued by the date of service of the indictment. On no view could the information then, in our view, be classed as potentially material. As was observed by Lord Carloway, delivering the opinion of this court in Gordon v HMA 2010 SCCR 589, at paragraph 93:

"... even in the case of convictions, having regard to a witness's right to respect for his private life, there is a limit on what is disclosable (HM Advocate v Murtagh (PC), Lord Hope of Craighead at paras 311-32). The convictions and charges require to be potentially material."

In Allison, at paragraph 9, Lord Rodger envisaged circumstances where, if charges were pending against a person, there could be good reason to be less trusting of that person than if there were no such charges. Whilst some may take that view, we consider that it would be unfair and unreasonable to be less trusting of a witness simply because at some date in the past, they were questioned by the police in connection with an allegation of crime and a report was sent to the procurator fiscal in respect of which no action was taken. The reason for the procurator-fiscal's decision could be, for instance, that it was a case of mistaken identity or that it was accepted that the witness had an entirely innocent explanation. A simple example of that would be where he had been able to furnish a receipt for a purchase in a case of alleged theft. Further, a witness will not normally be in a position to rebut any attack on him in the course of the trial. In a case such as the present, since the witness may not know that the decision to mark the report "no proceedings" has been taken, if asked about it in evidence, he may unwittingly give the impression that the allegation in question is outstanding when in truth, it is not. In these circumstances, we cannot see that an accused's right to a fair trial would, where an investigation had been marked "no proceedings" prior to service of the indictment, require that the information be disclosed. Such disclosure would, in our view, not only engage the witness's article 8 rights but not be justified, whatever the position, post Allison, as regards the duty of disclosure. These are considerations which, in our view, require to be taken into account when addressing the issue that arises in this appeal, namely whether in fact the failure to disclose the information about EH had any effect on the fairness of the trial, by which time the Case B had been marked "no proceedings".

THE APPEAL
Two grounds passed the sift. They were related to each other and can be summarised as being that it was incumbent on the Crown to disclose the information regarding Case B; EH's evidence was critical, as was presentation to the jury as a mortgage broker of impeccable credentials, and he would have been questioned about Case B had the defence known of it. The defence had been denied the opportunity of putting the material before the jury. There was, accordingly, a miscarriage of justice. Mr Anderson made submissions in support of these grounds of appeal under reference to the case of Allison.

The Advocate-depute submitted that notwithstanding that the material about Case B should have been disclosed, the trial was still fair. The material would not have been admissible in evidence at the trial. The Crown would have objected to the witness being questioned about it. By that time, Case B had been marked "no proceedings". Evidence about a witness's character was generally inadmissible (Gordon v HMA 2010 SCCR 589).

DECISION
The Crown's concession that the information about the police investigation and report regarding EH should have been disclosed at the time of indictment in this case, was appropriate. That is not, however, an end of the matter. It does not, of itself, mean that the failure to disclose had any effect on the fairness of the trial.

By the time of the trial, EH had not only not been charged but there was no longer any investigation pending against him. Whatever the position regarding an earlier material question mark hanging over him, perhaps of the sort envisaged by Lord Rodger at paragraph 9 of Allison, by the time of trial, it had been expunged. The earlier investigation could not, by that time, form any reasonable or proper basis for doubting his credibility or reliability, for the reasons we have discussed. That being so, the evidence about it would not have been admissible and the objection which the advocate-depute advised us would have been taken to any attempt to question him on the matter, would have been well founded.

Turning to the application of the test in McInnes, we consider that the fact, in this case, that though disclosable, the material could not properly have been referred to in evidence, has to be recognised. The second part of the test must, we consider, be approached bearing in mind that the jury could not properly have had the material placed before them. That being so, we can only conclude that in all the circumstances, there is no real possibility of the jury having reached a different verdict.

In these circumstances, we are not persuaded that the appellant's trial was unfair or that a miscarriage of justice has occurred and we will pronounce an interlocutor refusing the appeal.